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Testing for Silicosis Comes Under Scrutiny in Congress

Once seen as the next asbestos or tobacco for class-action lawyers, silica and the lawsuits related to it have instead become a messy legal morass for the doctors, X-ray screening companies and plaintiff law firms that have wound up as the subjects of numerous investigations.

Now, Congress is getting involved. Today, four doctors and the chief executive of an X-ray screening company are scheduled to appear before a Congressional subcommittee to answer questions about how patients were screened and how it was determined they had silicosis, a disabling and often fatal lung disease that comes from inhaling silica dust. Silica is a purified sand used as a cleaning abrasive in sandblasting and in making glass, and other materials.

The intensifying investigations into the validity of silicosis claims are having a spillover effect in litigation involving asbestos, and other suspected hazards, with defense lawyers looking for doctors who repeatedly turn up in diagnosing fairly rare occupational-related diseases.

As a result of this new line of inquiry, several thousand silica cases have been dismissed, doctors have been subpoenaed for their records, a federal grand jury has been convened in Manhattan to investigate and lawmakers are looking into whether stricter guidelines are needed on the screening of occupational diseases.

"For now, the hearings are primarily investigative, but obviously lawmakers are wondering what federal role may be taken here," said Edward F. Sherman, dean and professor of law at Tulane Law School, who is scheduled to speak at the hearings.

The aggressive stances against silica and other industrial-related claims are the fallout of a decision last June by Judge Janis Graham Jack of the Federal District Court in Corpus Christi, Tex., who questioned the validity of several thousand silica claims that were before her.

Because of silica's widespread use, some plaintiffs' lawyers viewed it as the source of the next big mass tort. But defendant law firms began looking into whether plaintiffs in the Texas silica lawsuit had previously filed claims against trusts set up to compensate victims injured by asbestos, a cancer-causing flame retardant.

What they found was that about 65 percent of the plaintiffs in the Corpus Christi federal lawsuit had also filed claims for asbestos. While it is medically possible, it is rare for a single person to suffer injuries as a result of exposure to both asbestos and silica. For instance, in at least one case, Dr. James Ballard of Birmingham, Ala., diagnosed asbestosis in a woman in 2000, but then in 2004, looking at the same X-ray, concluded she had a silica-related disease.

"Dr. Ballard's readings were entirely proper with regard to all aspects of his work," said Frederick P. Hafetz, a lawyer representing Dr. Ballard.

Yet in a harshly worded decision, Judge Jack, a former nurse, declared that many of the medical findings in the silicosis lawsuit before her were worthless and that they had been "manufactured for money." She remanded the lawsuit to state courts.

Since then, more than half of those 10,000 silica claims have been dismissed -- most of them voluntarily by the law firms that filed them. In mid-December, a plaintiffs' law firm, Campbell Cherry Harrison Davis Dove, agreed to dismiss 4,200 cases that Judge Jack had remanded to the Mississippi state courts.

A number of judges are now using Judge Jack's decision in weighing silica-related claims.

In January, a judge in Broward Circuit Court in Florida became wary of the silica claims before him after concluding that a number of the doctors and screening companies involved in the Judge Jack silica claims also appeared in his cases. The judge, David H. Krathen, pledged to "ride herd" on dubious silica claims, and said the N&M screening company of Mississippi "reeks from fraud." A call to Luke Dove, the lawyer for Heath Mason, the owner and operator of N&M, was not returned.

"I think silicosis is a dying mass tort," said Daniel Mulholland, a lawyer at Forman Perry Watkins Krutz & Tardy of Jackson, Miss., a lead defense law firm in the silica litigation.

The Claims Resolution Management Corporation, which overseas asbestos claims against the insulation maker Johns Manville as well as other asbestos trusts, announced in the wake of Judge Jack's decision that it would no longer accept claims based on diagnoses and reports from the doctors and screening operations identified in her opinion.

In recently updated data for federal asbestos litigation, the Manville Trust disclosed that on Nov. 21, 1994, Dr. Ray A. Harron diagnosed asbestos-related diseases in 515 people. That meant he had to read X-rays and make diagnoses at a rate of more than one a minute if he worked an eight-hour day. On June 20, 2002, Dr. Harron diagnosed 424 cases of asbestos-related injuries in a single day. In all, Dr. Harron wrote reports in support of 88,258 asbestos claims submitted to the Manville Trust.

"The fact that a number of letters are sent out on one day does not necessarily mean that all of the diagnoses happened that day," said Lawrence Goldman, a lawyer for Dr. Harron. "Do you think Yale or Harvard makes the entire decision about its freshman class on March 10 when it sends out all of the acceptances?"

Dr. Harron is expected to appear before a subcommittee of the House Energy and Commerce Committee today as is his son, Dr. Andrew Harron. Other doctors scheduled to appear are Dr. Ballard and Dr. George Martindale. Mr. Mason of the screening company N&M is also scheduled to appear.

The committee is interested in determining, among other things, whether proper state permits are being obtained by law firms that sponsor the screening vans in restaurant and motel parking lots that offer X-rays to look for silicosis and other diseases. It is also interested in learning what responsibilities the doctors who read X-rays and diagnose a life-threatening disease have in terms of follow-up care and patient relationships.